Fred Emmanuel John v Funmilayo Ebun Daibi Feyide John

• Jurisdiction: Dominica
• Judge: Stephenson J.
• Judgment Date: 19 July 2019
• Neutral Citation: DM 2019 HC 9
• Court: High Court (Dominica)
• Docket Number: DOMHMT2019/0002
• Date: 19 July 2019

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(MATRIMONIAL)

DOMHMT2019/0002

Between:-

Fred Emmanuel John

Petitioner /Respondent

and

Funmilayo Ebun Daibi Feyide John (a.k.a Funmi Feyide John)

Respondent/Applicant

Appearances

Hazel Johnson of de Freitas de Freitas & Johnson for the Petitioner/Respondent

Heather Felix Evans of Optimum Legal Services for the Respondent/Applicant

Civil practice and procedure — Pleadings — Leave to file out of time — Prejudice — Divorce petition — Answer — Whether respondent/applicant ought to be granted leave to file and serve answer out of time — Whether there was good and compelling reason for leave to file answer out of time — Whether petitioner/respondent would suffer prejudice if leave was granted — Application granted.

RULING ON WRITTEN SUBMISSIONS

Stephenson J.

1 This is an application brought by the Respondent (“Mrs John”) by way of summons filed on the 1 ^st April 2019 for leave to file her Answer to the Divorce petition out of time. There is an affidavit in support of the application with the proposed answer exhibited therewith. The Petitioner (“Mr John”) opposes the application.

2 It is important to have a quick review of the filings in this matter as it regards only the petition for divorce 1 to put the application for leave into full perspective as follows:

	Date	Documents filed	By which party
1.	January 18 th 2019	Petition	Mr John
2.	January 18 th 2019	Affidavit in support of petition	Mr John
3.	January 18 th 2019	Notice of Application to serve out of jurisdiction by substituted Service	Mr John
4.	January 18 th 2019	Affidavit in support of Application for service of petition and other documents out of the jurisdiction	Mr John
5.	January 22 nd 2019	Notice of Proceedings	Mr John
6.	January 25 th 2019	Order of Court granting leave to serve petition and other documents out of the jurisdiction on the respondent by post	Mr John
7.	February 20 th 2019	Affidavit of service of documents served out of the jurisdiction with Fed Ex Receipt exhibited (Documents couriered to Mrs John on the 28 th January 2019 and delivered on the 30 th January 2019)	Mr John
8.	March12th 2019	Notice of Change of Solicitor	Mrs John
9.	March 20 th 2019	Acknowledgement of service of the Petition	Mrs John
10.	March 2 th 2019	Amended Acknowledgment of service of Petition	Mrs John
11.	March 25 th 2019	Request for directions for trial	Mr John
12.	March 25 th 2019	Notice of hearing (a) Lodged on the 19 th March 2019 (b) Signed by Registrar on the 20 th March 2019	Mr John
13.	March 25 th 2019	Re-Amended Acknowledgment of Petition	Mrs John
14.	March 29 th 2019	Affidavit of Service for request for directions for trial and notice of hearing served on Counsel for Mrs John on the 26 th March 2019	Mr John
15.	April 1 st 2019	Summons for leave to file answer out of time listed for hearing on the 3 rd April 2019	Mrs John
16.	April 1 st 2019	Affidavit in support of application to file answer out of time	Mrs John
17.	April 1 st 2019	Certificate of Urgency filed requesting that the application for leave to file answer out of time be heard on the grounds that the court has set a date for the hearing of the petition	Mrs John
18.	April 4 th 2019	Affidavit in opposition to respondent's summons for leave to file answer out of time	Mr John
19.	May 31 st 2019	Submissions in support of application for leave to file answer out of time filed	Mrs John
20.	June 6 th 2019	Application heard in chambers … Court orders that matter to be dealt with on written submissions 2	The Court
21.	June 21 st 2019	Written submissions in opposition to the grant of leave to file answer out of time filed	Mr John

The application

3 In her affidavit in support of her application for leave to file her answer out of time Mrs John averred that when she was served with the petition for the dissolution of her marriage she was preoccupied with the legal proceedings brought by Mr John as it regards the children of the marriage.

4 Mrs John further averred that she was on the 30 ^th January 2019 served with the divorce petition in the United States of America and that she also appeared in the Circuit Court in Montgomery County Maryland USA when she was ordered y that court to return the children of the marriage to Mr John based on an exparte order obtained by Mr John from this court.

5 Mrs John stated that she was devastated by the order of court to hand the children of the marriage over to Mr John. She said that she became focused on and determined to regain custody of the

children of the marriage and was accordingly preoccupied with instructing counsel in that regard. During all this, she also changed solicitors and consequently overlooked instructing her counsel regarding the divorce petition and responding to same

6 Mrs John said that on the 20 ^th March 2019 she inadvertently instructed her solicitor not to indicate on the acknowledgement of service that she intended to defend the divorce proceedings and when she realised her error she immediately instructed her solicitor to file an amended acknowledgment of service indicating her intention to defend the proceedings.

7 Mrs John contends that she has not behaved in such a way that it would be unreasonable for Mr John to be expected to live with her as pleaded by Mr John in his Petition. She stated that she has been advised by her counsel and verily believes that the court ought to have regard to the whole history of the marriage before coming to a conclusion that her behaviour was unreasonable.

8 Mrs John averred that notwithstanding the fact that she left Dominica with the minor children of the marriage and returned to the United States without the knowledge and consent of Mr John it was with the intention that she and the said children would continue to live in the United States but it was never any intention or attempt to deprive Mr John of his children or keep them out of his reach for an extended period.

9 She said that her actions were based on fear and panic caused by the behaviour of Mr John.

10 She averred further, that basically the United States has also been the home of the family where she and Mr John met and were married and where the children were born and went to school before moving to Dominica. That there was a family home there and that she was surrounded by family and friends and felt more secure at that location. Mrs John speaks also to placing herself in a position where she felt she would have been on a level playing field to deal with the actions and statements of Mr John in terms of him wanting to be divorced by the end of the fiscal year of 2018 and springing this information on her. This court does note that Mrs John was not in her place of birth or in a place where she would have had friends and family which would have afforded her any support or comfort in the circumstances of her crumbling marriage, whereas Mr John was in his native land surrounded by family and presumably friends.

11 Mrs John stated in her affidavit that a reading of the petition filed by Mr John alleges against her unreasonable behaviour which was all subsequent to him asking her for a divorce and that he has not made out a case of unreasonable behaviour on her part and that the matter should go to trial for a determination on the merits. She further averred that it would be in the interest of justice for her to be given leave of the court to answer the petition filed herein.

12 Learned Counsel Felix Evans on behalf of Mrs John urged the court to allow Mrs John to file her answer out of time, as to do so would afford the court with an opportunity to grant the divorce either on the petitioner's petition or the respondent's answer which advances the administration of justice. That to refuse to allow her leave to file her answer out of time will deny her client the opportunity to respond to Mr. John's accusations and place her case before the court.

13 Learned Counsel Mrs Felix Evans submitted that her client is seeking the discretionary relief of the court and adopted the statement of Davies LJ in Collins -v- Collins 3 when he said “filing a pleading out of time is not a matter of right; it is a matter of concession or grace.”

14 The application at bar was filed on the 1 ^st April 2019 one month after Mrs John would have been required to file her answer. Counsel Mrs Felix Evans further submitted that Mr John would suffer from no injustice or prejudice for what she described as a slight delay in the proceedings. That it really is in Mrs John's interest to defend the allegations made against her by Mr John. If she is successful then her preventing a public decree based on Mr John's statements solely outweighs the slight inconvenience caused by the delay making it necessary for the grant of leave. Reliance was placed on the decision in Huxford -v- Huxford 4 and Rogers -v- Rogers 5.

The objection

15 Mr John submits to this court that there is no good and compelling reason for Mrs John to be granted leave to file her answer out of time.

16 Mr John in his response made reference to the various documents filed in the matter as it regards the divorce and which have been reviewed and listed by this court at paragraph 6 of this ruling. Mr John stated further that Mrs John at the interpartes hearing of the custody application when asked by this court indicated to the court that she did not intend to defend the petition and that at that time she was represented by counsel albeit a different counsel from the one that currently represents her. Mr John also sought to highlight the fact that Mrs John herself is a fully qualified attorney at law admitted to practice in Dominica.

17 Mr John...